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Whelton v. Dayton Beach Park No. 1 Corp.

Supreme Court of New York, Second Department

October 23, 2013

Lettie Whelton, respondent,
v.
Dayton Beach Park No. 1 Corp., defendant, Network Infrastructure, Inc., et al., appellants. Index No. 23135/10

Cullen and Dykman LLP, New York, N.Y. (Kevin C. McCaffrey of counsel), for appellants.

Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Network Infrastructure, Inc., National Grid USA Service Company, Inc., also known as National Grid USA, and Keyspan Gas East Corporation, doing business as Keyspan Energy Delivery Long Island, also known as Keyspan Corporation, appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated March 2, 2012, as denied that branch of their motion which was to transfer venue of this action from Kings County to Nassau County.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the motion of the defendants Network Infrastructure, Inc., National Grid USA Service Company, Inc., also known as National Grid USA, and Keyspan Gas East Corporation, doing business as Keyspan Energy Delivery Long Island, also known as Keyspan Corporation, which was to transfer venue of this action from Kings County to Nassau County is granted, and the Clerk of the Supreme Court, Kings County, is directed to deliver to the Clerk of the Supreme Court, Nassau County, all papers filed in this action and certified copies of all minutes and entries (see CPLR 511[d]).

In light of, inter alia, the Supreme Court's determination to award summary judgment dismissing the complaint insofar as asserted against the only party in this action whose presence supported venue in Kings County (see CPLR 503[a], [c]), its denial of that branch of the appellants' motion which was to transfer venue of this action from Kings County to Nassau County constituted an improvident exercise of discretion (see Bonilla v Tishman Interiors Corp., 100 A.D.3d 673, 674; Messiha v Staten Is. Univ. Hosp., 77 A.D.3d 894, 895; Canaan v Costco Wholesale Membership, Inc., 49 A.D.3d 583, 585; Clase v Sidoti, 20 A.D.3d 330, 331; Xiu Mei Cheng Chow v Long Is. R.R., 202 A.D.2d 154, 155).

SKELOS, J.P., DICKERSON, HALL and MILLER, JJ., concur.


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